Tune v. Synergy Gas Corp.

• Decision Date: 15 August 1994
• Docket Number: No. 76294,76294
• Citation: 883 S.W.2d 10
• Parties: Prod.Liab.Rep. (CCH) P 13,987 Ronald TUNE, Respondent, v. SYNERGY GAS CORPORATION, Appellant.
• Court: Missouri Supreme Court

Page 10

883 S.W.2d 10

Prod.Liab.Rep. (CCH) P 13,987

Ronald TUNE, Respondent, v. SYNERGY GAS CORPORATION, Appellant.

No. 76294.

Supreme Court of Missouri En Banc.

Aug. 15, 1994.

As Modified on Denial of Rehearing Sept. 20, 1994.

Thomas R. Larson, David E. Larson, Melody L. Nashan, Kansas City, Bruce Taylor, Brian T. Taylor, Neosho, for appellant.

Robert W. Evenson, Pineville, for respondent.

THOMAS, Judge.

Ronald Tune brought this action against Synergy Gas Corporation (Synergy) for severe burns and other personal injuries he sustained in a propane gas explosion and fire. The jury assessed one hundred percent fault to Synergy and found damages to be $2,850,000.00. The damage figure was adjusted for settlement amounts and prejudgment interest, and the trial court entered a judgment of $2,812,556.84 in favor of Tune. Synergy appealed and the court of appeals affirmed. Synergy then sought transfer to this Court. We affirm in part and reverse and remand in part.

I.

Granby Gas set up a system for the retail sale of propane at 71 Truck Stop. Granby Gas retained ownership of the equipment it installed with the exception of the 1000 gallon storage tank. Defendant Synergy purchased Granby Gas Company and acquired its equipment on May 12, 1988. On May 25, 1988, Synergy sold and delivered approximately 300 gallons of propane to 71 Truck Stop. After the delivery, there were approximately 840 gallons in the tank.

Plaintiff Ronald Tune was employed by Tim Heifner in Heifner's business, Satellites Unlimited, which sells and services satellite television equipment. On June 24, 1988, Heifner and Tune had a job updating an existing satellite system. The job entailed cutting and welding angle iron. That morning, Tune was preparing the equipment for the job. He opened the valve to the propane cylinder for the cutting torch, smelled nothing, and assumed the tank was empty. Tune then loaded the welder and the propane and oxygen cylinders for the torch into a trailer. Heifner and Tune proceeded to the 71 Truck Stop to have the propane cylinder filled.

A portable propane cylinder should only be filled to eighty percent of capacity. The only way to determine how much propane is in a cylinder of the type Heifner and Tune had is to weigh it. However, the attendant at 71 Truck Stop did not weigh the cylinder. The attendant filled the cylinder until the pump motor "bogged out" or "couldn't run anymore" and said he was giving Heifner and Tune a good deal. As a result, the cylinder was overfilled to nearly one hundred percent capacity.

Heifner and Tune then drove the forty-five to fifty miles to their job site and arrived at approximately 11:00 a.m. They began upgrading the system and were working approximately twenty feet downwind from their trailer where the propane tank was located. Heifner first made some cuts with the propane torch and then began welding. When Heifner struck the third welding rod, there was an explosion. The two were surrounded by flames.

Tune suffered partial thickness burns to approximately forty percent of his body. He received treatments for approximately forty days including twenty-six days of hospitalization. His treatments included hydrotherapy for which he was placed in a saltwater and antiseptic solution twice a day for cleaning of his burns. This procedure includes debridement during which dead tissue is scrubbed off with a brush. He was required to wear a body suit for one year following his hospitalization.

Tune's injuries are permanent. He has to use special soaps and lotions. Noises scare him; his nerves are "pretty shot;" he has trouble sleeping; he is sensitive to the sun, heat, cold, detergents, and other substances; his skin changes colors and tears easily; he has severe reactions to insect bites and stings; he has scarring; and he has a feeling of tightness in his skin. His ability to work and to engage in recreational activities has been restricted.

The pleadings alleged alternative theories of strict liability and negligence. The negligence allegations included negligent overfilling of the cylinder and negligent failure to train. The strict liability counts included defective and unreasonably dangerous product and failure to warn. The case was ultimately submitted only on strict liability-failure to warn.

Expert testimony established that the overfilling of the cylinder combined with the expansion of the gas with the heat of the day caused propane to leak out of the cylinder. The propane, being heavier than air, settled near the ground and was carried toward the men by a slight breeze. The propane was ignited by the arc from the welder.

Propane is an odorless gas. An odorant, usually ethyl mercaptan, is added to propane to warn of the presence of propane gas. The effectiveness of ethyl mercaptan can decrease through several factors including oxidation with rust on the inside of a cylinder and adsorption on various surfaces such as the ground. Also, because propane is heavier than air, propane may be at a greater concentration at ground level before there is a sufficient concentration to detect the odorant at the level of a person's nose.

Heifner and Tune each testified that they did not smell the propane odorant before the explosion. Tune testified that he knew what propane smelled like but that he did not know its chemical properties. There was expert testimony that the circumstances surrounding the explosion and fire were consistent with there having been a significant decrease in odorant concentration in the gas. Synergy provided no warning of the risk that ethyl mercaptan might not be effective to provide warning of the presence of gas and provided no training to the employees of 71 Truck Stop before the accident.

II.

We first address Synergy's point that the trial court should have directed a verdict in favor of Synergy because Tune failed to make a submissible case on product liability-failure to warn. Synergy contends that the product did not reach Tune without a substantial change in condition, there was no expert testimony that the product was defective or unreasonably dangerous, and Tune failed to show causation because the evidence fails to establish that a warning would have prevented the accident.

An appellate court views the evidence in the light most favorable to the plaintiff to determine whether a submissible case was made when reviewing the denial of a motion for a directed verdict. Winn-Senter Const. v. Katie Franks, Inc., 816 S.W.2d 943, 944 (Mo.App.1991). The elements of a cause of action for strict liability-failure to warn are: (1) defendant sold the product in question in the course of defendant's business; (2) the product was unreasonably dangerous at the time of sale when used as reasonably anticipated without knowledge of its characteristics; (3) the defendant did not give adequate warning of the danger; (4) the product was used in a reasonably anticipated manner; and (5) plaintiff was damaged as a direct result of the product being sold without an adequate warning. Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo. banc 1986); MAI 25.05 (4th ed. 1991).

A.

Synergy argues that the propane gas was substantially changed from the condition in which it was sold when the cylinder was overfilled at the truck stop and that Synergy should therefore be relieved of liability. Tune put on evidence that Synergy failed to warn of the dangers of overfilling or of the possibility that the odor in ethyl mercaptan might be ineffective to warn of the presence of propane. The reason for not overfilling, the danger of expansion and leakage rather than giving the customer more propane than the customer bought, was one of the things Tune argued that Synergy should have explained. There was no evidence that overfilling the cylinder changed the characteristics of the gas or the odorant. These characteristics were present when the propane was sold by Synergy. There was no evidence that the overfilling in any way affected the likelihood that ethyl mercaptan might not be effective to warn of the presence of propane. The dangerous product, the propane gas, was not modified.

B.

Synergy concedes that under current Missouri law expert testimony is not necessarily required to establish product defect or unreasonable danger. See Nesselrode, 707 S.W.2d at 378; Wadlow by Wadlow v. Lindner Homes, Inc., 722 S.W.2d 621, 625 (Mo.App.1986). Synergy urges this Court to adopt a rule requiring expert testimony to establish product defect or unreasonable danger in every design defect or failure to warn case.

In this case there was expert testimony that the effectiveness of ethyl mercaptan can decrease, that Synergy gave no warning of this characteristic, that propane is very dangerous without knowledge of this characteristic, and that the circumstances were consistent with there having been a significant decrease in odorant concentration. The jury had guidance and was not left to speculation and conjecture.

Given this information, a reasonable jury would have no problem in determining that propane gas is unreasonably dangerous and should be able to make this determination, particularly where there was no warning at all. A jury would have little trouble discerning that no warning was not an adequate warning. We decline to adopt the overly-inclusive rule proposed by Synergy in this case.

C.

There are two separate requirements of causation in a failure to warn case: (1) the product for which there was no warning must have caused plaintiff's injuries, and (2) the plaintiff must show that a warning would have altered the behavior of those involved in the accident. Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992). Synergy argues that Tune did not show the second requirement.

If there is sufficient evidence from which a jury could find that the plaintiff did not already know the danger, there is a presumption that a warning will be heeded. See id. Tune...